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PETITIONER: SARDAR HUSSAIN &  ANR.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT05/08/1988

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) SINGH, K.N. (J)

CITATION:  1987 SCALE  (2)693

ACT:     Indian  Penal  Code, 1860: Sections 210,  302  and  364- Appellants  convicted by Trial Court-High  Court  confirming conviction-On  appeal)  Supreme  Court  acquitting   accused holding that circumstantial evidence falls short of required standard on all material particulars.

HEADNOTE:     The  prosecution case was: the appellants, who  were  of bad character, had an evil eye on the lands belonging to the younger brother of PW 1, in furtherance of which they got  a fraudulent  sale deed executed and murdered him in order  to eliminate  the  possibility  of the  fraud  being  detected. Suspecting foul play of the appellants, PW 1 lodged an  FIR. At the instance of appellant No. 2, who was first  arrested, a  dead body was recovered from a water logged pond and  was identified  to  be that of PW 1’s younger  brother,  on  the basis of a shirt and a tahmad. The doctor; who conducted the post  mortem.  could  not give the cause  of  death  or  its duration.     The  appellants were convicted and sentenced  under  ss. 302, 364 and 210 IPC by the trial Judge. On appeal, the High Court  maintained the conviction and sentence  of  appellant No.  I but reduced the same of appellant No. 2 to one  under s. 201. Allowing the appeals,     HELD:  The  evidence against the  appellants  is  purely circumstantial. But the circumstantial evidence falls  short of  the required standard on all material  particulars.  The conviction   of   the  appellants  cannot.   therefore,   be sustained. [247H, 2490A]     There is no satisfactory evidence that the sale deed  in question  was     executed  by  somebody  impersonating  the deceased. Though PW 12, who was identified by PW 11,  scribe of  the  sale  deed,  as the  person  who  impersonated  the deceased,  deposed that he had put his thumb  impression  an the sale deed, the thumb impression of the executant and the admitted thumb impression of pW 12 were not sent for  expert opinion.Nothing   could be elicited from, nor  any  question was put to PW 20 to corroborate the version of PW II, as  to                                                   PG NO 245                                                   PG NO 246 the contents of the sale deed or the identity of the persons

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who  accompanied  him to PW 11 or those who  put  the  thumb impression on the sale deed. [248B-D]     The  evidence on record is equally unsatisfactory as  to identification  of the dead body. Post-mortem was done  more than three months from the date of alleged disappearance  of the  deceased.  The  doctor who  conducted  the  post-mortem stated  that it was skeleton of a young adult male  and  was unable  to  give the cause of death or when the  death  took place  owing  to the condition of the body.  The  two  panch witnesses  for  the  recovery of the  dead  body  could  not identity  the  clothes  recovered  from  the  dead  body  as belonging to the deceased. Though clothes were said to  have been  identified by PW 1 and his wife, a perusal of  PW  1’s evidence would indicate that the identification was  nothing but  farce. The body was not recovered at his  instance.  He could not have seen the dead body with the clothes, as these were  removed, washed, dried and packed separately with  the seal of the panchas. He was called to the Court only for the identification of the clothes and body. lie stated that  the dead body by appearance looked like that of his brother.  He could identify the clothes by a chit and a knot on them. The witnesses,  who were stated to have seen the deceased  going with the appellant No. 1 and his father-in-law did not speak anything  about the dress which the deceased was wearing  at that  time. PVI: Is evidence could not be believed since  he and  the  deceased were living separately and he  could  not have  seen  all  that he had stated in  evidence.  [24E,  G- H,249A-B, D-H]     Conviction  and sentence of appellants set  aside.  They are acquitted of all charges. [250A]

JUDGMENT:    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal E   No. 289 of 1978 were Cri. Appeal No. 403 of 1978.     From  the  Judgment  and Order dated  10.5.1978  of  the Allahabad High Court in Criminal Appeal No. 213 of 1973.     S.K.  Dhingra  and K. B. Rohtagi of the   Appellant  inn Crl. A. No. 289 of 1978.     R.K.  Jain,  Rakesh  Khanna  and  R.P.  Singh  for   the Appellant in Crl. A. No. 403 of 1978.     Prithvi   Raj  Singh  and  Dalveer  Bhandari   for   the Respondent.                                                   PG NO 247     The Judgment of the Court was delivered by     JAGANNATHh  SHETTY, J. This appeal by Special  leave  is from  a  Judgment of the Allahabad High Court dated  10  May 1978 dismissing Criminal Appeal No. 1 13 of 1973.     The  appellants  were  convicted  and  sentenced   under Section  302,364 and 210 IPC by the trial Judge. On  appeal, the  High Court maintained the said conviction and  sentence of appellant No. (1), but      reduced the same of appellant No.  (2) to one under Section 201. The prosecution  case  in brief is as follows:     lslam,  the deceased, is the younger brother of  Shabbir (PW  1). They were not living together. The former  used  to live  with  his  mother. Islam had his own  share  of  lands measuring 16 Bighas. He was separately cultivating the same. The appellants were once his close associates. They were  of bad  character. So mother and brother advised lslam to  part company with them. So lslam did and went on minding his  own work.  He was unmarried. The appellants had an evil  eye  on the  property of Islam. They got executed a fraudulent  sale deed (Ex. Ka. 12). The deed Was dated 15 February. 1971. One

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Ahsan who has been examined as PW 1’ has impersonated  Islam before  the  Sub-Registrar. They deed purports  to  transfer that  agricultural land of Islam   in favour of the wife  of appellant No. ( 1). It is said that the appellants in  order to  eliminate the possibility of this fraud being  detected. murdered Islam.     Shabbir suspecting foul play of the appellants lodged  a report  on 21 April, 1971. Zakir Ali appellant No,  (1)  was first arrested. He pointed out a dead body on IX July, 1971. It  wits  recovered from a place deeply burried in  a  water logged  pond. However, it was said to be identified as  that of  islam. The identification was based on a shirt  (Ex.  1) and a tahmad (Ex. 2.).     Upon the post-mortem. the Doctor was unable to give  his opinion regarding the cause of death or its duration.     The    evidence    against    appellants    is    purely circumstantial:  (i) motive for the crime (ii) the  evidence as  to last seen (iii) recovery of the body at the  instance of Appellant No. (2), and (iv) identification of the clothes with which the dead body was found.                                                   PG NO 248     We  will  first examine whether the motive which  is  of course  relevant  in  this  case  has  been   satisfactorily established.  Ex.  Ka.  12 is the sale  deed  by  which  the properties belonging to Islam were said to   have been  sold to  the  wife of Sardar Hussain, appellant  No.  (1).  Usman Ali (PW 11), who is the scribe of the sale deed, has deposed to  its   contents. He has stated that one Sarfaraz (PW  20) along with the  accused came to him with a request to  draft the  sale deed. They gave   the particulars. He has  written the  sale  deed  of which the executant was  Islam.  In  the Court,  he has identified Ahsan (PW 12) as the person    who impersonated Islam and put his thumb impression. He has also identified Zakir Ali-appellant No. (2) who affixed his thumb impression to the sale deed as a witness. But when  Sarfaraz Hussain  was  examined as PW 20 in the  Court.  nothing  was elicited about the sale deed or the persons who  accompanied him to PW 1 1. No question was put to him as to the contents of sale deed Ex. Ka. 12 or to the identification of  persons who  affixed  the thumb impressions thereon. PW 12  has,  no doubt  deposed that he had put his thumb impression  on  Ex. Ka.  12.  But  the  prosecution  has  not  sent  the   thumb impression of the executant of Ex. Ka. 12 with the  admitted thumb  impression  of PW 12 for expert  opinion.  There  is, therefore,  no satisfactory evidence that the sale deed  Ex. Ka. 12 was executed by somebody impersonating Islam.     As  to identification of the dead body, the evidence  on record is equally unsatisfactory. Shabbir (PW 1) has deposed that  about  14  months before, Islam was  taken  by  Sardar Hussain  and Yasin. Yasin is   the father-in-law  of  Sardar Hussain.  He has also stated when Islam went with  them,  he was  wearing  a  Shirt of green check and  a  black  striped tahmad.  Islam was taken on the pretext that they would  get him  married.  He has further stated that Mian  Jan  (PW  1) and,Sadiq    (PW  3) and one other person called  Majid  had seen  Islam  going with  the Sardar Hussain and  Yasin.  But Main  Jan  (PW 2) and Sadiq (PW 3) did  not  speak  anything about the dress which Islam was wearing when he was taken by Sardar Hussain and Yasin. Secondly, how could   Shabbir  see all  that  he  had stated. Islam  and  Shabbir  were  living separately.  Islam  was  not  taken  after  a  meeting  with Shabbir.  It is not the case of Shabbir that Islam  came  to him  and told him about the purpose  of his going  with  the accused. If the purpose was to get Islam married. why did he allow Islam to go with the accused. Islam had by then parted

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company  with  them at the instance of Shabhir  and  mother, because  they  were of bad character. Is  it  understandable that such bad characters should arrange the marriage without the  assistance or   approval of Shabbir and mother?  It  is difficult to believe Shabbir in the circumstances.                                                   PG NO 249     Islam  was said to have disappeared on 12 Aprial,  1971. PW 1 lodged the report on 21 April, 1971. The dead body  was recovered  on 18 July, 1971. The post-mortem was done on  20 July,  1971. It was more than three months from the date  of alleged disapearance of Islam. Dr. D.P. Manchanda (CW 1) who conducted the post-mortem was not able to give the cause  of death.  He  has stated that it was a skeleton of  a    young adult male. According to him, it would be difficult to  tell correctly  as  to when the death of the deceased  had  taken place.  There was no flesh left in the body.  The  eye-balls were  missing. The Vertabrae was not found attached  to  the skull. With this condition of the skeleton the Doctor  could not have given any better opinion.     Gulab  Singh (PW 7) is a Panch witness for the  recovery of  the  dead body. He has deposed that when  the  body  was removed,  the  tahmad and shirt were intact  and  they  were taken  out  by Sub-Inspector. Man Singh (PW  8)  is  another Panch witness. He has also stated that the shirt and  tahmad were  removed  by  the  Sub-Inspector.  washed,  packed  and sealed. The Panch witnesses could not identify the shirt and tahmad as belonging to the deceased.     That clothes are said to have been identified by Shabbir and  his wife Smt. Bhoori (PW 13) . The  identification  was conducted by Ramakant Dube (PW 9). He had mixed up the  said clothes  with five like clothes resembling with each  other. He  has  stated  that  Shabbir  and  Smt.  Bhoori  correctly identified  them  and  did not commit mistake.  But  if  one carefully  peruses  his  evidence,  the  identification  was nothing  but farce. The dead body was not recovered  in  the presence  of  Shabbir.  He was called to tbe  Court  of  the Magistrate  only for the identification of the  clothes  and the  body.  He has stated that the dead body  by  appearance looked  like that of his brother. We have earlier seen  that the Sub-Inspector had removed the clothes, washed dried  and packed them separately with the seal of the panchas. Shabbir could  not  have seen the dead body with  the  clothes.  The shirt (Ex. 1) and tahmad (Ex. 2) were no doubt mixed up with other  similar clothes for the purpose of identification  as deposed  by PW 9. But the witness identified Ex.  1  because there  was  paper  chit pasted on it. He  identified  Ex.  2 because it had a knot. That is why we said earlier that  the identification was a farce. We are surprised that the Courts below   should  rely  upon  this  kind  of   evidence.   The circumstantial evidence in the case thus falls short of  the required  standard  on  all material  particulars.  We  are, therefore,   unable  to  sustain  the  conviction   of   the appellants.                                                   PG NO 250     In the result, these appeals are allowed. The conviction and  sentence passed against the appellants are  set  aside. They  are  acquitted  of all the charges.  They  be  set  at liberty if they are in custody, and if they are not required in any other case. N.P.V.                                      Appeals allowed.